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Thursday, April 09, 2020

Class certification in felon-disenfranchisement case

In February, the Eleventh Circuit declared invalid a Florida law that required released felons to pay court-ordered financial obligations before their voting rights could be reinstated, affirming an injunction prohibiting enforcement as to the 17 named plaintiffs. At the time, I wrote:

The question is what happens next. The state remains free to decline to enforce the payment law against anyone while it continues to fight this litigation, even if not enjoined from doing so. That avoids either new litigation and a new injunction involving new plaintiffs or the court certifying a 23(b)(2) class of all felons unable to pay LFOs and extending the existing injunction to the class.

We got the answer on Tuesday. The district court certified a 23(b)(2) class of all persons who would be eligible to vote but-for unpaid obligations and a sub-class of persons who would be eligible but-for unpaid obligations and who show a genuine inability to pay those obligations. The state opposed certification in part on the grounds that an injunction is unnecessary, because the state will abide by any ruling if the plaintiffs prevail on the merits. The district court responded:

Here, though, the Secretary’s promise to abide by any ruling is not enough. After entry of a preliminary injunction in favor of the 17 individual plaintiffs, the Secretary advised Supervisors of Elections throughout the state that the ruling applied only to the 17 individuals. The March 2020 elections went forward on that basiswithout any statewide effort to conform to the United States Constitution as interpreted by both this court and the Eleventh Circuit. Class members can hardly be faulted for asserting that, if the ruling on the merits ultimately is that they have a constitutional right to vote, the right should be recognized in an enforceable decision.

The district court properly nailed the state on its inconsistency--promises of future voluntary compliance with a particularized injunction are undermined by past refusal to voluntarily comply, making the next step of class certification necessary. This is perhaps how litigation should work--a particularized injunction for individuals, expanded to a class if the state chooses not to voluntarily change as to non-parties. This is how some of the marriage-equality litigation proceeded, notably in Alabama.

But the state's framing, at least as described by the district court, is circular: The state would "abide by any court ruling." But any court ruling is limited to the named plaintiffs, so not changing conduct towards non-plaintiffs is not a failure to abide by the ruling. We need a new concept to capture what we want the government to do in changing its enforcement behavior to persons not protected by the injunction. Perhaps we could think of it as abiding not by the injunction but by the law-declaratory aspect of the court's judgment--the signal from the court as to the state of the law, separate from the order compelling government to act or refrain from acting, that hints at what will happen if government continues (as it is free under the particularized injunction) to enforce its laws as to non-parties.

Posted by Howard Wasserman on April 9, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


The Eleventh Circuit declared the portion of the Florida constitutional amendment allowing for felon re-enfranchisement that required released felons to pay court-ordered financial obligations before their voting rights could be reinstated even if they were legitimately financially unable to do so unconstitutional, not just the law faithfully implementing those requirements. The case may well result in the invalidation of the entire re-enfranchisement amendment.

Posted by: jph12 | Apr 10, 2020 12:50:16 PM

There is no speedy trial right, but there is an equitable right to avoid "irreparable harm," such as not be able to vote in an election. Oh wait, that doesn't seem to apply to potential Democrats.

Posted by: Steven Lubet | Apr 9, 2020 6:47:31 PM

There is no speedy-trial right in civil litigation, so that does not come into play. Most of what I am writing about is constitutional litigation, so this is all about constitutional harms.

Posted by: Howard Wasserman | Apr 9, 2020 11:23:48 AM

Thank you for the post. You say "This is perhaps how litigation should work," but in this instance, the members of the class were denied the ability to exercise an important constitutional right while the gears of justice did their slow grind. Perhaps the rules ought to be different when a class is commercially harmed or constitutionally harmed? Also, how does that conception of litigation align with the goal of a speedy trial?

Posted by: Adam Shostack | Apr 9, 2020 11:07:55 AM

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